Letter: Why are some Caribbean constitutions more difficult to amend than others?

Understanding why the Caribbean Courtroom of Justice (CCJ), the ultimate courtroom of attraction meant to switch the Judicial Committee of the Privy Council (JCPC), has solely attracted 4 nations — Barbados, Belize, Dominica, and Guyana – of 15 potential members, and why the 2 constitutional referenda in Grenada and Antigua-Barbuda to hitch the CCJ each failed by an enormous margin on November 6, 2018 requires contemplating each Commonwealth Caribbean constitution-making and widespread perception.

With just a few exceptions, the Commonwealth Caribbean nations have retained almost all options of the constitutions bestowed on them by the British Parliament once they have been granted independence between 1962 and 1983. It’s because their constitutions, like many constitutions all over the world, have been intentionally crafted to restrain radical change or subversion by a single capricious or fraudulent vote in an elected meeting or rigged referendum.

Apart from Guyana, Commonwealth Caribbean constitutional reform has solely concerned nations or points with out citizen referendum necessities as in Barbados, Belize, Dominica, and Trinidad and Tobago, the primary three simply becoming a member of the CCJ on that foundation.

For instance, though Trinidad and Tobago has not joined the CCJ, the absence of a constitutional referendum requirement allowed that nation to turn out to be a Republic in 1976 utilizing a two-thirds legislative majority underneath the favored rule of its founding Prime Minister Eric Williams.

In Guyana, a number of constitutional amendments not requiring a referendum have been enacted in 1970 together with alternative of Queen Elizabeth by an elected presidential Head of State and abolition of the proper to attraction to Judicial Committee of the Privy Council. These modifications weren’t sufficient to fulfill the nation’s infamous Prime Minister, Forbes Burnham (1964-1980), who needed to show Guyana right into a one-party “Socialist Cooperative Republic.” He did so by proposing a Invoice amending the Structure to take away the bulk referendum requirement for the constitutional reforms that he wished to enact. Passage of this Invoice itself required a referendum that Burnham’s Peoples Nationwide Congress (PNC) simply gained by what most observers consider was voter suppression and poll stuffing mixed with pre-election intimidation. After the Invoice was enacted, giant elements of the Structure have been amended by a two-thirds majority of the Nationwide Meeting itself stated to have been lengthy hijacked by PNC electoral fraud.

The Guyana instance goes to the guts of why our former British masters made it harder for a few of its colonies to amend their constitutions than others.

Based on authorized scholar Derek O’Brien (see notice 1 under), there exists within the Commonwealth Caribbean an “modification tradition” rooted in a common aversion to constitutional change. This antipathy is outlined by a deep mistrust of the political and authorized elite by each the previous British colonial authorities and odd West Indians.

All Commonwealth Caribbean nations require a parliamentary vote to amend their constitutions. In some instances, this includes solely a easy majority; in others, it requires a two-thirds or three-quarters majority. As talked about, many however not all nations additionally require a referendum. Of the bulk that require a referendum, the edge for approval varies from a easy to a two-thirds majority.

Why is there all this variation between nations? The reply is that the generalized “modification tradition” was targeted extra on some rising states than others.

So far as referenda are involved, solely three former colonies – Antigua and Barbuda, Grenada, and St. Vincent and the Grenadines (SVG) – require approval by two-thirds of the citizens to impact constitutional change.

That is partly as a result of the 1967 West Indies Act that granted Affiliate State standing to the six Japanese Caribbean colonies of Antigua and Barbuda, Dominica, Grenada, St. Kitts and Nevis, St. Lucia, and SVG as a transitional stage to full self-determination contained a selection reserved to the Crown between permitting independence via both a British parliamentary vote or a choice by an Affiliate State with the help of a minimum of two-thirds of all of the elected members of its legislature and a minimum of two-thirds of votes in a referendum.

However the British Authorities’s doubts concerning the knowledge of referenda as an expression of the individuals’s will and its unilateral granting of independence to the nations in query, presumably as a result of they rightly feared a lot of the Affiliate States’ individuals would vote towards independence — an interpretation the outcomes of subsequent referenda helps — such necessities have been nonetheless entrenched for main amendments of the independence constitutions granted to the six Affiliate States.

However this nonetheless doesn’t reply why Nice Britain used precisely the identical formulation, one requiring a really excessive threshold to succeed, certainly probably the most onerous within the area, for constitutional amendments in solely three of those six states: Antigua and Barbuda, Grenada, and SVG.

The reason being that it wished to make it very troublesome for these nations to revise their constitutions for worry that this might trigger Burnham-style repression given the extant political state of affairs and tradition in these three nations:

“The inclusion of a referendum requirement of their case arose as an alternative from the British Authorities’s deep mistrust of the area’s independence leaders; particularly Gairy in Grenada, Vere Fowl in Antigua, and Ebenezer Joshua in St Vincent and the Grenadines, all of whom had fallen foul of the Colonial Workplace at totally different occasions on their nation’s journey to independence. It’s thus no coincidence that the independence Constitutions of those three nations include a few of the most closely entrenched constitutional provisions to be discovered anyplace within the Commonwealth, not to mention the Caribbean, requiring

two-thirds approval in a referendum [and two-thirds in the House of Assembly] earlier than they are often amended” (Derek O’Brien, 2017).

Extra notably, all three males have been rabble-rousing, messianic commerce union leaders whose left-wing ideologies superficially appealed to the plenty.

Sir Vere Chook, a poorly educated man, was always charged by his political opponents with corruption and cronyism for treating his authorities as primarily a “household enterprise” through which dynastic succession wanted to be assured by the election of his son, Lester, as the subsequent Prime Minister; Ebenezer Joshua, who additionally had solely a main faculty schooling, was married to a lady although extensively believed to be illiterate nonetheless managed to be elected as a parliamentarian and appointed by her husband as Minister of Schooling solely to be arrested and charged with conspiring to set hearth to the Public Works Division in 1969; charismatic Sir Eric Gairy, the primary Prime Minister of Grenada and a staunch believer in “alien craft” who was charged with too many transgressions to even briefly listing them right here.

The constitutional modification leads to these and different Caribbean nations have been as many predicted: of the seven constitutionally permitted referenda within the post-independence period in Guyana, Nevis, the Bahamas, SVG, and Grenada (twice), and Antigua and Barbuda solely the primary succeeded, and solely then solely by way of chicanery.

Of the others, further options of the anti-amendment tradition, most of them internalized by atypical individuals however having nothing to do with the pro-colonial slave mentality speciously peddled by numerous elites as explaining antipathy to the CCJ, have dominated the day:

The conservative nature of Caribbean political tradition. The concept if a jurisprudence system just isn’t damaged, it shouldn’t be fastened is nicely exemplified by the next feedback by Norman Manley, the primary Premier of Jamaica, relating to his angle on the time about negotiating the nation’s independence structure:

“I make no apology for the truth that we didn’t try and embark upon any unique or novel train for constitution-building. We had a [British] system which we understood; we had been working it for a few years with sense. It’s a system which has endured in different nations for generations efficiently. It’s a system which is in line with the kind of beliefs we have now on this nation, and it was not troublesome to determine that we might comply with that acquainted system with these modifications which we thought the circumstances of Independence deserved.”

Respect for British tradition and establishments among the many plenty. Whether or not brazenly or subliminally, many Caribbean individuals, particularly migrants who’ve returned from England to retire of their native lands, have a reverence for and attachment to the native expression of British establishments and practices just like the mainstream church buildings, the schooling system, and the politico-legal superstructure, whilst they concurrently suspicious or afraid of their occupants, which have all the time been an intrinsic a part of our Caribbean civilization whether or not in bastardized type or not.

Contempt for the self-serving hypocrisy of the elite. It’s widely known and seen with derision that a few of the loudest cheerleaders for constitutional reform, particularly modifications that might distance the constitutions from their British roots, together with discarding appeals to the JCPC, have been the completely satisfied recipients of such British honours as knighthoods and membership within the Privy Council.

Political tribalism. Political consensus, even when it is perhaps in the perfect pursuits of all residents, is almost unattainable in our winner-take-all, first-past-the-post political tradition. If a ruling social gathering proposes a constitutional modification, the knee-jerk response of the opposition and their beguiled supporters is to dam it on no good substantive grounds.

Cynicism relating to elite intentions. The eagerness of the political elites and their authorized career and intelligentsia sycophants to fiddle with their constitutions has evoked a wholesome sense of skepticism amongst bizarre residents. Why, for instance, is there such zeal to switch the age-old JCPC with the new-fangled CCJ until the facility holders anticipate preferential remedy from their associates on the courtroom ought to they ever be convicted of some critical crime is an oft-heard chorus.

Along with a generalized grassroots mistrust, even worry, of all individuals occupying positions involving the affect and energy of the state – the police, the authorized fraternity, the courts, and the political institution — these anti-amendment options assist clarify why the constitutional referenda in Antigua-Barbuda and Grenada on November 6 resulted in a sound rejection of CCJ.

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Notice 1. A extra complete dialogue of a few of points handled right here could also be present in a superb evaluate and evaluation by British authorized scholar Derek O’Brien titled “Formal Modification Guidelines and Constitutional Endurance: The Unusual case of the Commonwealth Caribbean,” in The Foundations and Traditions of Constitutional Modification, Richard Albert et al, editors, Hart Publishing, Oxford, 2017, pp. 293-313.

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That is the eighth in a collection of opinions on Caribbean constitutional reform, with particular reference to the Caribbean Courtroom of Justice. The others are listed under:

If justice have to be seen to be achieved, stick to the Privy Council

Beware the hubristic Siren track of Caribbean constitutional change

The hypocritical colonial mentality of the Caribbean Courtroom of Justice